Synopsis: IL Governor JB Pritzker Continues “John Hancocking” New Laws at Record Pace—KCB&A’s Top Employment Lawyer, Brad Smith Wants To Keep You Ahead of Him and Them!
Editor’s comment: As Summer begins its descent into Autumn, new IL laws keep on, keepin’ on. Recently, Governor Pritzker signed sweeping changes to the Illinois legal landscape. Some of these laws directly affect Illinois employers, HR folks and risk managers, so pay close attention. Most of them do not take effect immediately, but they’ll be here shortly.
Work Place Transparency Act
One of those laws is the Illinois Workplace Transparency Act (WTA). That Act expansively provides key changes to other laws including:
the Illinois Human Rights Act (IHRA);
the Victims Economic Security and Safety Act (VESSA);
the Illinois Equal Pay Act; and
the Hotel Casino Employee Safety Act.
The Governor signed this legislation on August 9, 2019. It provides far reaching alterations to the employment law landscape in Illinois. You can access this Act (Public Act 101-0221) at http://www.ilga.gov/legislation/publicacts/101/101-0221.htm.
The WTA creates sweeping changes. It limits employers’ abilities in restricting certain employee rights about allegations of unlawful conduct. This new law also changes the IHRA and the VESSA. Its effective date is January 1, 2020. Some of the new laws are effective more immediately (e.g., the Illinois Equal Pay Act amendments are effective September 29, 2019).
What does the WTA do?
Prohibits employers from preventing employees or prospective employees from making truthful statements or disclosures about alleged unlawful employment practices or criminal activity.
Prohibits employers from requiring employees to waive, arbitrate, or diminish an existing or future claim related to an unlawful employment practice.
Allows employers and employees to bargain for certain waivers if the agreement is in writing and contains various disclaimers.
Gene Keefe, your editor, notes this new Act may change the requisite language and terms of IL WC Release/Resignations—the defense team at KCB&A is mulling whether that is accurate and you can expect our best thoughts/forms soon.
Prohibits unilateral confidentiality agreements in settlement or termination agreements but does not prohibits mutual confidentiality if there are certain covenants. For example:
If confidentiality is the documented preference and mutually beneficial to both parties;
The employee is notified of his or her right to have an attorney review the agreement;
The employee is given 21 days to consider the agreement and 7 days to revoke a signed agreement;
The waiver is knowing and voluntary;
There is valid, bargained-for consideration in exchange for the confidentiality; and
The agreement does not require the employee to waive claims of unlawful employment practices that accrue after the date of execution of the settlement or termination agreement.
While not within the WTA, the definition of an employer under the IHRA was recently altered by PA 101-0221. This law would expand the definition of an employer to include any entity that employs one or more persons (currently this is 15 employees for most protected categories). The effective date for this law is July 1, 2020. This amendment widens the reach of the IHRA. Now all small employers are subject to its provisions. In the past, employers with less than 15 employees could avoid liability under the IHRA if the allegations were not based on a couple of the protected categories.
The amendments also alter the definition of unlawful discrimination as it relates to “actual or perceived” discrimination. Simply put, “perceived” discrimination now would apply to all protected categories under the IHRA. Previously, this only applied to disability and sexual orientation categories. “Perceived” discrimination allows folks to be included in protected categories merely due to the employer’s perception that it is included in that category.
Similarly, the amendments alter the definition of “harassment.” It is now defined as “unwelcome conduct” on the basis of a person’s “actual or perceived” inclusion in all listed protected categories under the IHRA. These two amendments mean that individual employees that are not in a protected category can still sue under that category if there is a perception that the employee meets the protected category. I believe this will cause employees suing their employer to fabricate allegations that their employer perceived them as meeting a protected category under the IHRA.
The new law amends the IHRA to prohibit harassment by an employer against non-employees, including contractors, consultants, and anyone else directly performing services for the employer pursuant to a contract with that employer. Does this now mean that a homeowner employing a nanny, cleaning person, or lawn mowing service can be liable under the IHRA? It really depends on your interpretation of the definition “employer” under the IHRA’s new amendments.
The new law also requires that employer disclose on an annual basis (every July 1st) to the Illinois Department of Human Rights (IDHR) any adverse judgment or administrative ruling against them in the preceding calendar year. The employer may be required to disclose information on settlements of any sexual harassment or unlawful discrimination claims, but only if the IDHR has an open charge pending under the IHRA and requests that the employer disclose this information. This law will require the traditional confidentiality provisions used in employer severance agreements to be altered.
Importantly, too, the new law requires that every employer “with employees working in” Illinois provide sexual harassment prevention training on an annual basis. KCBA has qualified developed sexual harassment training policies in this area. Please contact us for further information if you need onsite training for your employees.
The new laws also designates additional sexual harassment prevention requirements on a particular segment of employers: restaurants and bars. Those types of employers are now required to provide a written sexual harassment policy to all employees within the first calendar week of beginning employment.
Hotel and Casino Employee Safety Act
The Hotel and Casino Employee Safety Act requires hotels and casinos to equip employees who work alone in guest rooms, restrooms, or casino floors, with a safety or notification device that will summon help if the employee reasonably believes that an ongoing crime, sexual harassment, sexual assault, or other emergency is occurring in the employee’s presence. This law also has embedded requirements to have a written anti-sexual harassment policy.
Victims Economic Security and Safety Act
The new VESSA amendments now include “gender violence,” in addition to the other existing categories.
Illinois Equal Pay Act
The new pertinent changes to the Illinois Equal Pay Act (Public Act 101-0177) are as follows:
Employers and employment agencies are prohibited from requesting or requiring applicants to disclose prior wage, salary, benefit or other compensation history as a condition of an application process or of employment.
Employers cannot refuse to hire folks or fire them for that employee refusing to comply with any wage or salary history inquiry.
You can still ask your employees their expectations with respect to wages and benefits.
Employers may not prohibit employees from discussing their wages, salary, benefits, or other compensation with others. However, employers may still prohibit human resources employees, supervisors, and other employees who have access to wage or salary information from disclosing that information without the written consent of the employee whose information is sought or requested.
IEPA loosens the comparator consideration to “substantially similar,” as opposed to “equal” skill, effort, and responsibility.
Damages now include actual damages incurred, special damages up to $10,000.00, injunctive relief as may be appropriate, possibly punitive and compensatory damages, and costs and reasonably attorneys’ fees.
These new amendments are interesting as they create new categories of violations for employers requesting information that was routinely requested and used as a defense in the past. Now employers can no longer count on certain defense arguments regarding prior salary amounts for incoming employees as the discrepancy between differing pay for individuals.
Artificial Intelligence Video Interview Law
Governor Pritzker also recently signed HB 2557, which creates the Artificial Intelligence Video Interview Act. This new law will go into effect on January 1, 2020. And it requires regulation of employers use of artificial intelligence video interviews. The new law provides as follows:
An employer that asks applicants to record video interviews and uses an artificial intelligence analysis of applicant-submitted videos shall notify each applicant before the interview that artificial intelligence may be used.
An employer may not use artificial intelligence to evaluate applicants who have not consented to the use of artificial intelligence analysis.
An employer may not share applicant videos, except with persons whose expertise is necessary in order to evaluate an applicant’s fitness for a position.
Applicants have the rights to be forgotten and all the data deleted within 30 days.
There are no private rights of action under this law.
Personal Information Protection Act
Governor Pritzker also signed SB 1624. This law makes modifications to the already existing data breach notification law, otherwise known as the Personal Information Protection Act or PIPA. This law will go into effect on January 1, 2020.
All of these new laws require employers and other businesses to adjust their current practices. These adjustments might be miniscule, but most are rather intrusive into how businesses operate alongside their employees. These changes should be instituted by businesses. And the professionals at KCBA are happy to help with any requests to review and alter any employment restrictive covenants, contracts, and severance agreements. Additionally, the necessary training under the new laws is within KCBA’s wheelhouse, so if any businesses need that implemented, then please reach out to a KCBA professional for more information. Any further questions on the new law can also be directed to KCBA.
This article was researched and written by Bradley J. Smith, JD. You can reach Brad for questions about general liability, motor vehicle insurance defense, employment law, and insurance coverage at email@example.com
Synopsis: In Indiana Worker’s Comp, Be Sure to Remember to EDI Lump Sum Payment Information within 30 days When Paying Claimants for Section 15 settlements. Research and writing by Kevin Boyle, J.D.
Editor’s comment: As you may have experienced, the EDI changes installed in IN WC this year have given some insurers/employers headaches and tested their IT systems’ ability to comply with the new rules. Hopefully, you have been able to keep up with the new system.
As part of the changes, the Indiana Worker’s Compensation Board recently reminded users that insurers/employers need to EDI proof of payment on settlement agreements to show payment of any settlement was made within 30 days of the Approval.
Last year, the statute added the 30 day deadline for payments of full and final agreements (“Section 15s”). So in addition to paying settlements within 30 days of the Approval, please also remember that you must provide the payment information through EDI, too.
Some of the new software systems/vendors that have been installed to comply with the new EDI system have protocol that automatically generate those EDI payment transmission to take care of the new requirement.
But if you don’t have that, now is a good time to either upgrade your system or manually make sure it’s done. Don’t get caught short with needed documentation.
If you need any help on this, please contact me: firstname.lastname@example.org.